Ku v Lang - [2024] NZHC 2136

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-4

[2024] NZHC 2136

BETWEEN
JANICE LAN CHUN KU

Plaintiff

AND

YUANHONG LANG

Defendant

Hearing: 15 July 2024

Appearances:

Wendy Andrews for the Plaintiff David K Wilson for the Defendant

Judgment:

1 August 2024

JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

Application for summary judgment and for orders:

(a) removing a notice of claim; (b) possession of property

This judgment was delivered by me on 1 August 2024 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules

…………………………. Registrar/Deputy Registrar

Solicitors:
Sinisa Law, Otahuhu, Auckland, for the Plaintiff
Loo & Koo (Arthur Loo), Newmarket, Auckland, for the Defendant

Counsel:
Wendy E Andrews, Barrister, Auckland, for the Plaintiff D K Wilson, Barrister, Auckland, for the Defendant

KU v LANG [2024] NZHC 2136 [1 August 2024]

TABLE OF CONTENTS

Paragraph

Background [2]

Ms Ku’s application for summary judgment [9]

Ms Lang’s opposition [12]

Legal principles [14]

Summary judgments [14]

Caveats and notices of claim [17]

Analysis [22]

Does Ms Lang have a caveatable interest in the Property? [24]

Contracting-Out Agreement: Mr Lo and Ms Lang

[39]

Conclusion in respect of caveatable interest

[41]

Should the Court exercise its discretion to remove the notice of claim?

[42]

Unlawful occupier

[45]

Conclusion in respect of unlawful occupier

[47]

Result

[50]

Orders

[52]

[1] Ms Janice Lan Chun Ku (Ms Ku) seeks summary judgment against Ms Yuanhong Lang (Ms Lang) for the removal of a notice of claim lodged pursuant to the Property (Relationships) Act 1976 against the title of the property at 32 Sunderlands Road, Halfmoon Bay, Auckland of which Ms Ku is the registered proprietor (the Property). Ms Ku also seeks a summary judgment order pursuant to Part 13 of the High Court Rules 2016 for possession of the Property.

Background

[2] Ms Ku has been the registered owner of the Property since 11 June 2004. Ms Ku was married to Mr Lam Lo (Mr Lo) and lived with him from 1979 to 2002. Their marriage was dissolved in 2006. Ms Lang was the de facto partner of Mr Lo from 2003.

[3]From around 2003, Mr Lo and Ms Lang lived at the Property.

[4] On 8 November 2005, Ms Lang and Mr Lo signed a property relationship agreement whereby it was agreed that any property owned by the parties prior to their relationship was not matrimonial property, and that all property in Mr Lo’s name as at the date of the agreement was his separate property.

[5] On 8 December 2022, Ms Lang claimed the Property as being relationship property.

[6] From August 2023, Mr Lo moved to live with his daughter. Mr Lo now requires care and lives in a retirement home.

[7]In October 2023, Ms Lang returned from China and occupied the Property.

[8] Ms Ku has requested Ms Lang to move out of the Property but Ms Lang has refused…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ku v Lang

Details

AGLC: Ku v Lang [2024] NZHC 2136
Case: [2024] NZHC 2136
Decision Date: 1 August 2024

CaseChat Overview and Summary

The case of Ku v Lang was heard by Associate Judge C B Taylor in the High Court of New Zealand, Auckland Registry. Ms Janice Ku sought summary judgment against Ms Yuanhong Lang for the removal of a notice of claim against the title of a property at 32 Sunderlands Road, Halfmoon Bay, Auckland, of which Ms Ku is the registered proprietor. Ms Ku also sought an order for possession of the property. Ms Lang opposed the application, asserting a valid and sustainable interest in the property as a result of her de facto relationship with Mr Lam Lo, who was the beneficial owner of the property. The court was required to determine whether Ms Lang had a reasonably arguable caveatable interest in the property, and whether it should exercise its discretion to remove the notice of claim. The court also needed to decide if Ms Lang was an unlawful occupier of the property. The court found that Ms Lang had a reasonably arguable caveatable interest in the property and that the notice of claim should not be removed. The court also determined that Ms Lang was not an unlawful occupier of the property. Consequently, Ms Ku's applications for summary judgment orders removing the notice of claim and for possession of the property were dismissed. As Ms Lang was the successful party, costs should follow the event. Counsel were directed to endeavour to agree on costs, and if agreement could not be reached within 20 working days, the counsel for Ms Lang would file a memorandum as to costs, to which the counsel for Ms Ku would respond. A decision as to costs would then be made on the papers.

Orders